1 Given the willingness of the SCOTUS to decide the Constitution means whatever they hell they want it to mean i don't see such an amendment having much of an effect.

2 Crime rates have been declining since the early nineties in most categories: http://www.disastercenter.com/crime/uscrime.htm I get the feeling you don't read newspapers, but just take it on faith that crime must have gone up because Clinton was president. Incidently do you understand the position of Justice Marshall or do you know from faith based reasoning that we've been on the wrong course for nearly 2 centuries? Do you perhaps hold seances with President Diem to guide you so you can lecture the people of this country on what to do without actually reading their history or studying their laws?

3 angela: What part of the word "constitution" do you not understand? It isn't something to be "interpreted." It is what it is. You do not discover something with it that was never seen before. It's there, in black and white, and it doesn't take a rocket scientist to figure out what it says. On the other hand, it can take an imbacile to competely screw it up. The US Constitution was composed by pure genius, but it is being bastardized by morons.

4 I will apologize for the Diem remark, but do you know that the campaign against judical activism was part of the "southern strategy" and one of the reason it was so reviled was that the courts outlawed segregation and Jim Crow? Not technically dealt with by the constitution. The debate goes back and forth, there are good arguments that the "right to privacy" used in Roe is questionable, but is a debate within a living constitution. Most scholars both conservative and liberal argue that the third branch of government is there to act as check on the passions of politics that drives the other branches. Development of the law is a complex process, but the position you take argues that Internet expression can be censored because it's not literally produced by a press. I understand at least to a degree the Constitution and the complex history around it. I believe the judges were right to assure the right of people like Ms. Rice to vote. Previous to the court's rulings the states were free to erect various blockages. Undermining this was one reason why so many condemned "judical activism."

5 Yes, Angela. But that was then, and this is now. To say that a racist made a particular argument in the 50s as a rationale for continuing with segregation does not mean that the argument has no validity. I get the feeling you don't read newspapers, but just take it on faith that crime must have gone up because Clinton was president. Must be your first visit here. Howdy.

6 BTW: The "crime wave of the 90's" referred to in the piece must have been the Clinton administration. Of course it wasn't part of decline in the rate of crime because Clinton had his mits on the Justice Department. I mean, wasn't this the bunch that produced a Surgeon General who thought that if we legalize illegal drugs, that crime rates would drop? Well, duh! If we legalize EVERYTHING that is currently illegal, then crime rates will DISAPPEAR! Clinton was a banana republic thug.

7 I personally think that it had a lot less to do with Clinton and a lot more to do with the boom in crack cocaine. But, hey—that's just me.

8 Re the crime rates, I assume we've all read Freakonomics. If not, drop everything and do so. It isn't something to be "interpreted." The problem with these kind of things is that the Constitution is always open to interpretation, by its very nature. It was open to interpretation the day it was written. It was a fudge at the time, even as the Founders stood up from the table. The first arguments about what the document meant broke out in no time at all, among people who drafted it. Let's just take one example: The Constitution does not provide the Supreme Court with the power to strike down laws that conflict with the Constitution. That power is not enumerated anywhere. It's case law: Marbury v Madison. If one is a original-intent type, one must explain how one wishes the Supreme Court from making sure that the only laws that are enacted are ones that agree with the Constitution at the time it was written, while removing the ability from the Surpreme Court to do so. And one more: The First Amendment provides that Congress shall make no law "abridging the freedom of speech, or of the press." Congress makes a law making it to post political commentary on a blog. Does the First Amendment prohibit this? If so, how do you come to that conclusion without interpreting the First Amendment in terms of intent and logical entailments?

9 Christophe - Clarification please? it looks like a couple of your words got dropped: ...how one wishes the [SC] from making sure... ...Congress makes a law making it to post political commentary on a blog... thanks

10 Christophe's a fast typist; you know how those people get. Try these: "how one wishes to have the Supreme Court make sure" "law making it illegal to post political commentary"

11 What LMA said. Fast typing and lots of coffee are a dangerous combination.

12 I personally think that it had a lot less to do with Clinton and a lot more to do with the boom in crack cocaine. And what caused the cocaine boom in the 90's? Could it have had something to do with the heavy-handed crackdown on Marijuana in the 80's? Sadly, I have to lay that one at the feet of Ronaldus Magnus.

13 Well, there's the fact that crack was developed during that time period. But you could be right, if overzealous enforcement of laws that are kooky to begin with caused a market aberration, which was exploited by the purveyors of crack. It wasn't just Reagan: admitting the irrationality of drug laws is still this strange taboo among politicians.

14 Christophe - Here we see LMA's editor talent shining out like a beacon on a hill. Probably the only reason it took her nine whole minutes is because she'd wandered off to brew up some tea. But the "strange taboo" thing? To me it's the only predictable, logical behavior. Other behavior is what would look strange.

1 It's all part of the gay community's coordinated if curious strategy to follow the black community in walking the plank right off the political spectrum

2 The difference being that the Dems use the black community as a source of votes, but regards gays/lesbians as a source of cash. So it isn't like they can't tell the difference. (Did you see the admission near the end of the article wherein it's fleetingly states that one of Alito's decisons had the effect of protecting a boy who was being gay-baited in a public school? No doubt Alito woke up on the wrong side of the bed that day.)

3 Well, I'd say, given Alito's record, it is very likely that he would vote to overturn Lawrence v Texas. Lawrence being the most significant gay rights victory of the last, oh, 20 years, I'd say that gays have a reason to be a tiny bit concerned.

4 And you base this prediction on . . . what?

5 Let me ask a question first, and I'll promise to answer your original question: Do the states, under the US Constitution as it exists at this moment, have the legal ability to outlaw specific sexual activities based on the activity or sex of the people performing it? (Setting aside Lawrence for the moment, of course.)

6 No. I cannot see how one can justify any of the states prohibiting private consensual noncommercial behavior between adults. I believe it's a unconstitutional overreach; I do not see how the State (or state) has a legitimate interest in this.

7 OK. We agree. The question is, would the court? Lawrence's dissenters were Scalia, Thomas, and Rehnquist. I have to observe that Alito is much more in their mould than in, say, Souter's. Scalia's dissent was particularly scathing (really, I used to admire Scalia, but he's becoming more than a bit cranky and irrational). Of course, no one knows how Alito would vote on a case that relied on Lawrence as a precedent. If Alito is the kind of judge he appears to be, he might not even really know, since the case hasn't been presented yet. (Of course, my very own industry may give them the opportunity, in the form of Extreme Associates, since the US District Court in LA found that current obscenity law and Lawrence were incompatible. I'm not quite sure I see the reasoning, there, but I'm not a judge.) Scalia, Thomas and Rehnquiest felt that, regardless of whether or not sodomy laws are good public policy, they are within the constitutional power of the state to enact. (Thomas, for example, pretty much said that he thought sodomy laws were bad public policy; from Scalia's dissent, in which he compared the laws against to sodomy to the laws against pederasty, I have to conclude he's more confortable with them.) Alito strikes me as a judge who will be, if not a red-meat Orginalist, one who will view the doctrines that lead us from Griswold to Lawrence with plenty of suspicion. As previously noted, I don't think Alito is a nut-case. I didn't think Rehnquist was a nut-case either (I have, ah, how shall we say, more nuanced opinions of Scalia and Thomas). But he does seem inclined to read the Constitution very narrowly, and a very narrow reading makes it hard to sustain Lawrence (or Griswold, or, yes, Roe, which is of course the ghost at this particular banquet).

8 Of course, to overturn Lawrence, both Roberts and Alito would have to "vote" to do so. Another justice would have "flip." And then the very recent precedent of Lawrence would have to be overturned. It sounds to me like a rather startling scenario.

9 And then the very recent precedent of Lawrence would have to be overturned. True, but Lawrence itself overturned a relatively recent precedent in the form of Bowers (as Scalia made sure everyone was quite aware). These things do happen. Again, I'm not frothing at the mouth about Alito. The Supremes are, in fact, not nearly as important in the grand scheme of America as activists on either the right or the left make it out to be. And while O'Connor concurred on Lawrence, it was for different reasons than the rest of majority, so it's not entirely clear that the base votes have "changed." But it's also not nuts to be concerned about Alito if you subscribe to the penumbra theory of rights.

10 I'm still curious if you have specific cases of Alito's that lead you to believe he'd overturn Lawrence.

11 No, but I don't think that's necessary to have concerns. It's a bit like asking a governor of a state, as a candidate for President, has a good track record in the conduct of a war. The Supreme Court is fundamentally different from every other court in the US, and the range of cases and the type of decisions are far different from that of any other court. Some surmise is always required, unless the judge just happened to be on the path of a hot button case; few are so cursed. The only specifically gay-rights related case that he's voted on is Saxe, and that was a nuanced ruling that I happen to agree with (nose held, but I still have to agree with it). It had zero to do with the legal reasoning underlying Lawrence. Remember, the question of Lawrence is not (setting aside what Scalia would clearly like it to be) "is sodomy a good thing the state shoudl promote?" but "is it within the state's power to restrict it?" (SoCons, I've noticed, do tend to confuse those two issues, assuming that everything allowed by the state must be perforce endorsed by it.) Alito has shown considerable deference to the legislature when it comes to gray areas, in the same line as Thomas and Scalia. But we're not going to know for sure until the inevitable challenge to Lawrence reaches the court. He has certainly not shown any particular friendless towards the rights of those accused of a crime. To me, that's a much bigger red flag, since if the US Constitution is about anything, it's about the rights of people who dissent from or are in trouble with the state.

12 Clarence Thomas' dissent on the sodomy ruling was clear that were it up to him as a voter, he would vote against it. But that wasn't the question, only whether it violated the Constitution. States regulate all sorts of private behavior - they can tell you who you can have sex with (someone 18 but not 17), where, under the influence of what substances, whether you can pay someone for sex, etc. The 'right to privacy' is a Humpty Dumpty right. (from Alice: "When I use a word, it means exactly what I want it to mean, nothing more, nothing less.") Somehow, it's never construed to mean you have the private right to own a gun, for instance. As a homo myself, I have no problem with the legislature deciding such things, & that goes for abortion rights too. I don't agree with Prop 73, but a majority of Californians do. I'm far more concerned about runaway courts than runaway legislatures.

13 One also has to remember that there are those of us who want the reasoning behind the decision to be sound, and actually think that's more important than the decision itself. That is, rather than have a justice decide what the "good" outcome is, and then rationalize it, I want a constitutional scholar who will tell us what the law is, and work from there. Then if the law sucks we can work on our Federal, local, and state legislators to change it. Another way of saying it: I don't want someone who agrees with me. I want someone who's intellectually honest.

14 I'm far more concerned about runaway courts than runaway legislatures. So, what's your view on Bush v. Gore? That is, rather than have a justice decide what the "good" outcome is, and then rationalize it, I want a constitutional scholar who will tell us what the law is, and work from there. No problem. My disagreement with Alito (as I far as I can tell) is not about his politics, so to speak. I disagree with what I perceive as his interpretation of the Constitution, and feel that he will take too narrow an interpretation of the rights granted therein. And let us not kid ourselves: Justices do work backwards from outcomes. Thomas does it. Scalia does it. I don't think that the platonic ideal of a completely results-free judge exists.